As the trial nears for Daniel Penny, who is accused of fatally choking a homeless man on a New York City subway, use-of-force experts talk to Newsweek about the science behind chokeholds and how each side will potentially present its case to the jury.
Penny, a 25-year-old former Marine, is charged with second-degree manslaughter and negligent homicide in the 2023 death of 30-year-old Jordan Neely.
Neely, who was a well-known Michael Jackson impersonator, got on the subway at the Second Avenue station and reportedly began yelling and threatening people. Penny then allegedly came up to Neely from behind and placed him into a chokehold. Neely was later pronounced dead at a hospital. His death was ruled a homicide by compression of the neck.
Dr. John R. Black, a retired police lieutenant and expert witness in cases involving high-stress decision making and lethal force, broke down the case.
“A tragedy has occurred on all sides, and the best thing that we can do before we pass judgment is to truly try to understand how these things occur, both from a sense-making, decision-making standpoint, the choices of the actor, as well as by an evidence-based standpoint about what actually occurs and what the science shows,” Black told Newsweek.
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Black explained one type of chokehold and the purpose of it.
“In some places, it’s referred to as a lateral vascular neck restraint, which is the idea of shutting down the blood flow to the brain,” Black said. “The blood carries oxygen. If that occurs for enough time, depending on the person’s state of arousal, how much under stress they are, the person that is having a choke applied to them, basically they go unconscious.”
Jamie Borden, a police veteran and expert witness in cases involving use of force, discussed how the lateral vascular neck restraint (LVNR) is used by law enforcement.
“The crook of the arm cradles the airway, does not collapse the airway, but the pressure is on the right and left carotid artery,” Borden said. “That’s called the lateral vascular neck restraint. That causes, again, a momentary outage in consciousness and the officers are able to safely detain or control a subject otherwise out of control.”
‘Chokehold is What Caused the Death’
Black said there is another type of chokehold that has a different intent.
“In contrast, we also use the word chokehold for the shutting down of the airway,” Black said. “Usually, it would normally also occur with some sort of potential damage.”
Borden said the different types of restraints can appear similar on video. He said public response to fatal incidents has led to police departments banning LVNRs.
“No matter what the circumstances, the appearances cause an emotional, conductive belief that the chokehold is what caused the death,” Borden said.
Black said that restraints like the LVNR are widely taught and typically non-lethal.
“Chokeholds, as whatever they’re called, whether it’s to shut down the blood flow or anything else, is still used consistently in anything from military to competitions, taught to six-year-olds in judo. It’s not, on its face value, this technique that’s designed to always produce death, but sometimes it does,” Black said.
Black explained why these maneuvers are safe to use in these settings.
“The Marines already know, the guys doing judo already know if they tap, the other person’s going to release them,” Black said. “If they’re in competition, both of them are physically fit. They know what a choke feels like. They don’t panic when they get choked. In fact, they try to figure out how to get out of it, how to defeat the choke. They’re taught how to defeat it. That’s a completely different mindset, right? But what was Jordan’s mindset? We don’t know.”
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Borden explained the increased risk when a civilian is performing the restraint.
“The problem with the civilian in these types of high-profile use of force cases is we don’t know what their training is,” Borden said. “We don’t know if they understand the application of what would be considered a less lethal application of a hands-on tactic.”
Black questioned how Penny arrived at the decision to use the chokehold maneuver on Neely on the subway.
“Where did he shift these models to a New York subway? Because I’m pretty sure that no Marine instructor said, ‘OK, now, hypothetically, we’re on a New York subway,'” Black said.
Despite this, Black said there was an intention that Penny viewed as rational.
“Every decision made by a decision maker makes sense at the time that they made it, even if they don’t know why,” Black said.
‘Passionate Belief’
Black said prosecutors will likely focus on the severity of the threat Neely posed and the intensity of Penny’s response.
“The prosecutor’s argument is primarily an argument of, we’ll call it, disproportionate response. This person did not represent the level of threat by which the technique that the other person chose was applied, so there’s a mismatch,” Black said.
Borden said the prosecution will likely emphasize the appearance of the incident.
“The prosecution is more than likely building their case on a passionate belief that something was done wrong,” Borden said. “That doesn’t mean that it wasn’t done wrong, but I’m saying that they’ll present their case from a point of passionate belief about the appearance of the incident.”
The defense will likely challenge that point, according to Black.
“The other argument is we have the right to use a proportional level of force, and actually the law would say a reasonably necessary level of force to protect ourselves or to protect another,” Black said.
Borden said Penny must be able to prove that he actually believed his life was in danger.
“I want to know why you feared for your life,” Borden said. “Tell me the story and give me the perceptions at a raw perspective level and let me understand how you feared for your life.”
Black said both the prosecution and defense arguments have merit based on the evidence in the case.
“What’s interesting to me, when you begin to unpack this, is both arguments could absolutely be true based on the physical evidence,” Black said.
The trial is scheduled to begin on October 21. Penny is facing five to 15 years in prison for the manslaughter charge and up to four years for the negligent homicide charge. He is currently free on $100,000 bail.
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